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Administrative Rules Review Committee

MINUTES OF THE

ADMINISTRATIVE RULES REVIEW COMMITTEE

Monday, November 24, 1997 - 9: 00 a-m. - Room 405 State Capitol




Members Present:     Members Absent:
    Sen. Howard A. Stephenson, Cochair    Rep. David Ure
    Sen. David L. Buhler
    Sen. Mike Dmitrich     Staff Present:
    Sen. Craig A. Peterson    Mr. Arthur L. Hunsaker,
    Sen. Robert C. Steiner    Research Analyst
    Rep. John B. Arrington    Ms. Esther D. Chelsea-McCarty,
    Rep. James R. Gowans    Associate General Counsel
    Rep. Martin R. Stephens    Ms. Joy L. Miller, Secretary


Note:    A list of others present and a copy of materials distributed in the meeting are on file in the Office of Legislative Research and General Counsel

                
1. Call to Order and Approval of Minutes of Meeting Held November 3, 1997 -Chairman Stephenson called the meeting to order at 1): 1 5 a.m.


MOTION: Sen. Dmitrich moved to appro,@e the minutes of November 3, 1997. The
motion passed unanimously.


2.     Update: RI 56-3a-102(13) Definition of "Unlicenced employees, subordinates, associates, or drafters of a person licensed under this chapter," from July 23, 1997 meeting (Rep. Stephens) - Sen. Stephenson indicated that previous discussion of the issue centered on the term "supervision" and what it means in regards to developing architectural plans.

    Mr. David Fairhurst, Division of Occupational and Professional Licensing, distributed a
copy of the amendments that have been made to RI 5 6.

Rep. Stephens referred to a situation that was discussed in a previous meeting. In that situation, the individual took his plans to a licensed architect who reviewed them and indicated the changes that needed to be made. The individual said the recommended changes and brought them back to the architect. The architect made additional changes which the individual complied with. After all changes were made the architect then stamped the plans. Rep. Stephens sal 'd he could see nothing in that situation that would help the public. By passage of the rule, those kinds of situations would be eliminated. This raises the concern he has that the architects are being protected, not the public.

Mr. Fairhurst stated if there is a lack of clarification in the law, he asked the committee to



Minutes of the Administrative Rules Review Committee
November 24, 1997
Page 2

propose legislation to clarify it. He pointed out that the practice of architecture is a regulated profession. The rule is a clarification of what the practice has been for years. The issue is a matter of liability. Now when the client works with the architect, the architect is clearly liable. If an unlicenced individual seeks an architect to review and stamp plans, the AIA feels the issue of who is liable is not clear.

    Sen. Stephenson indicated that the statute go-,!ems. A rule can not be made that changes
the meaning of the statute.

Mr. Ray Walker, Legal Counsel, Division of Occupational and Professional Licensing, referred UtahCodeSection58-3a-102(8). The rule further defines that language. The words "under the direction of an architect" mean that the person can't be performing work independently of an architect. Prepared plans can't be brought to an architect to stamp if they were not prepared under the direction of the architect. The architect may have reviewed the plans, which satisfies a portion of the definition in question, but they were not prepared under the direction of the architect. He believed there is no need for a change in the statute.

Mr. Walker stated the division and its recommendation board are concerned about the unlicenced practice of architecture and its impact on the public. There is a problem in the state of nonlicensed architects preparing work and bringing it to architects in the state. In other cases they have found very inadequate review by the architect even though it contains a stamp. Tightening up the restrictions will eliminate these problems.

Sen. Stephenson stated the fraudulent use of stamps should be pursued vigorously. The architect who allows the fraudulent use or those who criminally use the stamp without the architect's knowledge should be prosecuted. The question is. however, does the statute prohibit situations where an architect thoroughly reviews and approves the plans created by someone else.

    Mr. Walker said statute does not permit someone not licensed or qualified as an architect
to have an architect review the plans and affix his seal.

Sen. Peterson said he has heard no testimony that the current statute is unclear and its meaning cannot be determined. It does not include the ability at this point in time for an architect to stamp a drawing over which he had no involvement in the process until it was completed. If the Legislature wants to change the philosophy it has the authority to do it. However, he said he would have difficulty with trying to change it administratively. The rule clarification appears to appropriately clarify what is In statute. One option may be to create a class of licensed draftsman.


Minutes of the Administrative Rules Review Committee
November 24, 1997
Page 3

    Sen. Stephenson asked if the policies and procedures of a particular architect's firm are
sufficient for the division to determine that an architect has been involved from the beginning.

    Mr. Fairhurst noted an architecture firm cannot write policies and procedures that violate the laws and rules. The division would consider them, however, as far as intent. The division does not license or regulate architecture firms. The Law states that each firm engaged in the practice of architecture must employ a principal, which is defined as a licensed architect in responsible charge of the design services for that firm. The responsibility ultimately rests upon the shoulders of that licensed person in that fin-n who is responsible.

Sen. Buhler requested that he be noted as having a potential conflict of interest because the division contracts with his company for services. Professions are licensed because at some time it has been determined that the public protection is required by licensing and establishing certain standards of conduct for a particular profession. He asked if there was any other profession where an unlicenced person can perform the scope of practice of a licensee. He questioned the situations involving volunteers.

Mr. Walker said there are several exemptions in the law.

3. Additional Meeting - The committee discussed the action taken by the Legislative
Management Committee regarding meeting schedule,;.

Sen. Dmitrich explained that management approved one additional meeting and recommended that the committee prepare legislation to prohibit rulemaking during December, February.

    Mr. Hunsaker said if an additional meeting is held the committee may want to meet
shortly before the session.

4.     Proposed Legislation:

a. Draft bill, "Administrative Rules Amendments" - Rep. Stephens said Speaker Brown suggested putting in the legislation that the committee was to meet at least monthly year round.

         MOTION: Rep. Stephens moved to amend the bill to state that the committee meet at
least monthly year round. The motion passed unanimously.

Ms. Chelsea-McCarty stated the initial reason the bill was brought before the committee was because an issue was raised about incorporating certain types of items by reference. Many agencies put state implementation plans into their rules so the public knows the rule is being






Minutes of the Administrative Rules Review Committee
November 24. 1997
Page 4

initiated in response to a federal mandate. She noted that the bill proposes to allow for
incorporating federally mandated state implementation plans by reference.

    Mr. Lyle Odendahl, Department of Health, said technically the plans are only mandated if
they want to participate in the programs.

     MOTION: Sen. Peterson moved to amend the bill as follows:

Page 2, Line 20:    After government insert "for participation in the federal program

    The motion passed unanimously.

    Ms. Chelsea-McCarty stated when the five-year rule process was changed one of the things that was not fully considered was the requirement that agencies keep their written comments. It was suggested that the review should be thorough enough that the only comments that should be kept are the ones during and since the last fi%,e-year review.
    
    Mr. Ken Hansen, Division of Administrative Rules, said publication space in the bulletin
is also a concern.

Mr. Odendahl stated the five-year review should concentrate on places where the agency may have chosen not to do any rulemaking action and there has been no public participation in those rules.

Ms. Jan Miller, Division of Air Quality, said if comments were made as part of a rulemaking action, they have summarized them and given them to their board before adopting the rule.

Mr. Odendahl suggested adding language on page 3. line 23 after "received" inserting
44 and for which there has been no rutemaking action." He stated most of the comments they have
received are after they have proposed the rulemaking change.

Sen. Steiner noted that if there has been a rulemaking action with written comment from various individuals, it does not necessarily mean the rule has reflected those comments perfectly. It takes a lot of work to summarize the comments, therefore. it may be better to collect the comments separately and have them on hand.

    Mr. Hansen stated although an agency must consider comments it receives, it is not
required to incorporate all those comments in its rule.


    
Minutes of the Administrative Rules Review Commiitee
November 24,1997
Page 5

Mr. Kent Bishop, Office of Planning and Budget, explained that the Rulemaking Act defines a record. A record is a file of all the comments and input the agency uses in making a rule. The agency is bound by law to keep copies of that information.

Ms. Chelsea-McCarty noted that the change proposed on page 5 is one the committee has struggled with. It was felt the proposed amendment as necessary to clarify that the committee could sunset down to a specific section, rather than a complete rule, if the committee only felt that a particular section was the problem. She said the legislation indicates that if the Division of Administrative Rules makes a nonsubstantive change, it can be challenged up to four years after the change was made. If the agency makes a nonsubstantive change, there is only two years to challenge it.

    The committee delayed action on the bill until the next meeting.

b.     Draft bill, 'Reauthorization of Administration Rules" - Mr. Hunsaker said that currently there are three rules the committee voted to place on the sunset bill. The three rules deal with Utah Social Services Delivery System Data Bases Screening, Vehicle Window Tinting, and Tow Trucks. He explained the concerns with the rules.

    Mr. Bishop requested that he be allowed to work with the Department of Transportation
to withdraw the particular item from the rule regarding tow trucks.

Mr. David Alder, Utah Department of Transportation, said they would be agreeable to
make the change as requested by Mr. Bishop.

Rep. Stephens explained that the agency responsible for child care has filed a 120-day rule which is almost identical to one previously filed rather than going through the regular rulemaking process. He requested the agency be scheduled on the next agenda.

The committee delayed final action on the legislation until the next meeting.

4.     Report: Fiscal Impact of Administrative Rules - Sen. Stephenson stated the Legislative Fiscal Analyst was asked to examine the way different agencies are reporting the fiscal impact of rules.

Mr. Leo Memmott, Legislative Fiscal Analyst, stated in most cases the rules do not have a fiscal impact either on state budget, local governments, other persons, or compliance costs. The compliance cost for affected persons is the broadest and most difficult estimate to give on any of the rules. It appears that perhaps state agencies are not paying as much attention to the anticipated costs or savings as they might be. He said there may need to be


Minutes of the Administrative Rules Review Committee
November 24,1997
Page 6

some sort of enforcement. Agencies need to be frequently reminded that they are supposed to fill
out that section completely rather than just putting "none."
    
Mr. Bill Diehard, Office of Legislative Fiscal Analyst, discussed rule R501-2 concerning human services. His concerns center around the development of standards; the requirement that all programs serving minors or vulnerable adults submit-nit identifying information for screening of staff, and the requirement to upgrade from the clinical supervisor to a licensed clinical professional. In each of these cases the agency indicated there would be no impact.

Mr. Bishop explained that generally enforcement has been the responsibility of the Division of Administrative Rules. He said that perhaps agency rulemaking needs to be tightened regarding the parameters by which the fiscal note issues are dealt with by each agency. He stated that over the next few months he and Mr. Hansen wiII prepare some additional rulemaking and clarification in this area.

Mr. Hansen noted when they see a rule analysis form come in with a blank question, they deem it to be in noncompliance with the statute and ,will contact the agency to have them provide a response. They have not second guessed the agency when they say the cost is none.

Mr. Memmott said they looked at the 1997 Personal Property Evaluation Guides. While there is no change in revenue or expense to the state and very little to local governments, there would be a shift in the tax burden to various taxpayers. It may not be quantifiable but should be noted as part of the rule.

Rep. Stephens asked that Mr. Bishop and Mr. Hansen bring back a recommendation of how the problem could be solved at the next meeting. If necessary, legislation could be considered at that time.

Mr. Memmott suggested that the Office of Planing and Budget review the fiscal notes on the rules. They would be the neutral agency that could raise the same issues with the agency that are being raised today.

    Sen. Stephenson would like to see legislation to be considered at the next meeting. He
requested Mr. Bishop communicate with staff to determine if legislation could be prepared.

5. Committee Business/Adjourn - The next meeting of the committee was scheduled for
January 12, 1998, at 9:00 a.m.

     MOTION: Rep. Stephens moved to adjourn the meeting at I 1: I 0 a.m. The motion passed unanimously.

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